On the 16th July the Supreme Court returned to the vexed question of what constitutes a “judicial authority” for the purposes of the Extradition Act 2003.

Background Facts

The case concerns three European Arrest Warrants, two issued in Lithuania, and one in Estonia. In two of the appeals, the Minister of Justice of Lithuania (MOJL) issued and signed an EAW requesting that a Lithuanian national, who is currently resident in the United Kingdom, be arrested by authorities here and surrendered to Lithuania in order to serve the remainder of terms of imprisonment imposed by the Lithuanian courts. In the third appeal, an official of the Ministry of Justice of Estonia (MOJE) issued and signed an EAW which requested the arrest and surrender to Estonia of an Estonian national who is currently resident in the United Kingdom, in order that he might serve the balance of a term of imprisonment imposed by the Estonian courts. The warrants are being challenged primarily on the basis that the Ministries of Justice do not constitute a “judicial authority” within the meaning of the Extradition Act 2003, s 2(2), with the consequence that the EAWs are invalid. The EAWs concerned are all ‘conviction warrants’, i.e. the individuals have all been convicted in the requesting states already. This is in contrast to an ‘accusation warrant’ where an individual is wanted to stand trial in another country.

The EAW framework stems from the 2002 European Framework Decision on EAWs and surrender procedures (FD). Articles 6 and 7 of the FD state:

Article 6

Determination of the competent judicial authorities

1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.

Article 7

Recourse to the central authority

1. Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities.

2. A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority (ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto.

A Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State.

Previous decisions

The case has come straight up from the Queen’s Bench Division, where the Court had the unenviable task of applying the judgments made in Assange. Assange concerned the Swedish Public Prosecutor rather than the Ministry of Justice and was an ‘accusation’ rather than ‘conviction warrant’. However, the various decisions in Assange also contained general comments as to the nature of judicial authorities, and as such the interpretation of the Assange judgments were central to the decision of the lower court in this Bucnys. When Assange was heard in the Divisional Court Sir John Thomas, giving the judgment, stated that:

i. “Although no Member State should for a moment think that its Ministry of Justice was part of the judicial branch, many states, it is clear from the judgment in Schlesser, consider that the exercise of judicial power is not confined to adjudicating…”

ii. The designation, under Art 6(3) of the FD, by one Member State that a particular institution was a “judicial authority” for the purpose of the issue of EAWs did not always compel the recognition by another Member State, if the authority was self evidently not a judicial authority within the meaning of that “broad term” in the FD. “If a warrant was issued by a Ministry of Justice which the Member State had designated as the authority under Art 6, it would not, in our view, be a valid EAW under the Framework Decision. The principles of mutual recognition and mutual confidence which underpin the common area of justice would not require the recognition of such a warrant, as it would self-evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial … public confidence in the EAW would only be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor.”

iii. If the person or body issuing the EAW was not a “judicial authority” within Article 6 of the FD, then the designating certificate issued by SOCA would not be conclusive.

However, the Divisional Court in Assange did not elaborate as to why a Ministry of Justice would not be considered a judicial authority under principles “universally accepted in Europe”, it seemed to view the proposition as self-evident.

Once Assange reached the Supreme Court the interpretation of what was to be considered a judicial authority varied considerably across the separate opinions given by the seven justices. However, the justices all effectively agreed that the correct interpretation of ‘judicial authority’ with regard to the FD was a matter of European Union Law and that the material the CJEU might have regard to in deciding the interpretation included (a) the wording of the FD itself; (b) a comparison of the different language versions of the FD; (c) its aims and those of the Treaties in general; (d) the genesis of the FD and the history of European procedures on extradition prior to the FD; (e) practice of Member States since the FD was adopted (via Art 31.3(c)of the Vienna Convention) and, possibly, the attitude of European Union institutions (especially the Commission) to that practice through reports made by it or for it. [46] Once it had been determined whether an institution or person was a judicial authority for the purposes of EU law then the common law presumption that the UK would fulfill its international law obligations when transmitting the terms of that obligation into national law would lead to the conclusion that the meaning of “judicial authority” in the 2003 Extradition Act should have the same scope as that in the FD, provided it was possible to give the statutory wording the same meaning.

Extrapolating from the Supreme Court Assange judgment the Court in Bucnys deemed its task to be to

“to determine whether, as a matter of European Union law, the phrase “judicial authority” in Art 6(1) of the FD can embrace a ministry of justice, or the minister of justice, or an official in that ministry, that has been designated by a Member State as the “judicial authority” for issuing conviction EAWs; at least in the case where the EAW is issued pursuant to an enforceable court judgment in the issuing state that imposed or confirmed the sentence yet to be served. Whatever the answer is to the question of interpretation of Art 6(1) of the FD as a matter of European Union law, then it seems to us that we are bound by the approach of the majority of the Supreme Court in Assange to hold that the words “judicial authority” in section 2(2)of the EA must be interpreted in the same way.” [52]

Counsel for the MOJL and MOJE submitted that in each case the conviction EAW was issued by the Minister or an official of the Ministry of Justice properly acting as a “judicial authority” within Art 6(1)of the FD because the issue of the EAW in each case was based on an enforceable court judgment concerning the sentence of the offender, and stressed the fact that six Member States had designated their Ministry of Justice as the “judicial authority” for issuing conviction EAWs and that two had done so in respect also of accusation EAWs. State practice and the fact it had been acquiesced in by all other Member States would be taken into account by the CJEU when it was interpreting “judicial authority” within Art 6(1).

However, a number of Commission reports on Lithuania had criticised the role of the MOJL in EAWs and disputed their designation as a ‘judicial authority’. Counsel for the Bucnys and Lavrov. relied on these reports and the argument that a ministry of justice is, prima facie, part of the executive; (ii) it will not have the same independence or responsibility to other courts or, indeed, any code of ethics that a court or public prosecutor will have; (iii) thus if a ministry is in charge of issuing an EAW (whether accusation or conviction) it will have to supply the particulars of the offence(s), but it will not be under the same impulsion as would a court or prosecutor to ensure they are correct; (iv) Art 15of the FD contemplates that the “judicial authority” of the requesting state may furnish additional useful information, but that contemplates this coming from an impartial source which is separate from the executive.

In reaching their decision the Court emphasised three main points:

The wording of the FD suggests that the Judicial Authority is a different body from the executive.

The CJEU would emphasise that the system envisaged by the FD is to be based on the principle of mutual trust and confidence in the legal and judicial systems of Member States, who are left to designate the “competent judicial authority”. This points to the CJEU having regard to the fact that there must be respect for different types of “judicial authority” for issuing EAWs. This again would lead to the CJEU holding that Member States must be allowed a degree of autonomy in determining what person or body constitutes the “competent judicial authority” for the purposes of designation under Art 6(3),provided always that the designated body complies with the requisite autonomous and objective norms contemplated by the FD. [91&92]

A Member State’s designation of a “judicial authority” which might be within the scope of the term in the case of conviction EAWs might not be so in the case of accusation EAWs. [92]

Bearing these points in mind the Court suggested that the CJEU primarily rely on one norm: that the designated “judicial authority” must be sufficiently independent of the executive for the purpose of carrying out the function of making the “judicial decision” when issuing the EAW [97]. With regard to conviction EAWs, “If the national law concerned provides that the pre-condition to the issue of a conviction EAW by the ministry of justice is that there must be not only an enforceable judgment and sentence but also a request from the sentencing court that a conviction EAW be issued, then the scope for executive interference is much reduced if not entirely eliminated.”

Applying this principle the Court found that while the MOJL satisfied the objectivity criteria, the MOJE did not. With regard to the MOJE the Court deemed there to be a lack of functional independence from the executive such that the MOJ characterized as a judicial authority.

Comment

It is unlikely that the Supreme Court was delighted to see another case of the interpretation of ‘judicial authority’ in the 2003 Act so soon after Assange. However, it is hoped that the case may serve as an opportunity to clarify the various conflicting judgments in Assange. As illustrated by the difficulties the lower court in Bucnys faced in applying the Assange, the Supreme Court judgment left a number of issues open, and the variation between the judgments forces courts to ‘cherry pick’ the interpretations of certain justices and disregard others. It is to be hoped that the decision in Bucnys will clarify the situation and also be useful in terms of validating (or not) the distinction between conviction and accusation warrants in terms of what constitutes a judicial authority.